The State of Colorado vs. James Holmes: Why the Death Penalty?

01/13/2015 04:42 pm ET Updated Mar 14, 2015

The prosecution has criticized the defense for not turning over their mental health experts' reports and understandably refuses to turn over government experts' reports. While the two sides engage in a standoff, both knowing what they believe to be true about the mental health of James Holmes, the larger question of whether anyone with serious mental illness should be facing the death penalty remains the elephant in the room.

In 2006 the American Bar Association passed a resolution (122A) recommending that impaired defendants with serious mental illness be exempt from the death penalty. Resolutions and policy statements from the American Psychiatric Association, the American Psychological Association and the National Alliance on Mental illness recommend the same. I was a member of the ABA Taskforce and on the Board of Directors at NAMI when these resolutions were debated and crafted. I hear the same questions asked about the death penalty for James Holmes that were raised during those proceedings so many years ago.

Why should someone get away with murder just because they're mentally ill? Not seeking the death penalty is not the same as not prosecuting, convicting and keeping society safe. Life in prison, ending by natural causes keeps us as safe as life in prison ending by lethal injection.

If someone meticulously planned murder, how could they have serious mental illness? Planning and intent to kill does not necessarily mean the same thing for someone with serious mental illness as it does for the majority of us. We are not delusional, living in a false reality or hearing voices telling us we are in danger, should kill others or ourselves. But an alarming large number of defendants in our criminal justice system are, according to the Department of Justice statistics, living in such a world created by their broken brains. In that world, no wrongs are being planned or committed. Instead "survival", "executing my CIA orders", "saving the world from Armageddon" and even more bizarre imperatives are being followed blindly. The blindness stems simply from biologically based, no-fault, brain disorders.

The killer is intelligent and cogent, how can he possibly be seriously mentally ill? Serious mental illnesses like Schizophrenia and other psychotic disorders are not the same as mental retardation (Developmental Disability). Two brilliant mathematicians, Nobel Laureate John Nash and convicted "Unabomber" Theodore Kaczynski have Paranoid Schizophrenia. Professor Nash was ill when he did the work that earned him the prize and Professor Kaczynski was ill when he spent two decades committing the crimes. The research is clear on this: you can have average intelligence, or be very smart and have serious mental illnesses like Schizophrenia.

I don't know the details of James Holmes' state of mind at the time of the tragic shootings, but I do know there is an evolving standard of decency in this country when it comes to exposing seriously mentally ill citizens to the death penalty. The professional organization the prosecutors belong to recommends the death penalty not be sought in cases of serious mental illnesses that impair judgment. The leading mental health professional organizations agree, as does the nation's leading nonprofit advocacy organization for all persons with mental illness (NAMI had nothing to gain by taking this position other than doing what the Board of Directors believe was the right thing).

In light of these facts and what is known about brain disorders like Schizophrenia, the only remaining question in my view is this: Why do our Federal, State and County prosecutors persist in seeking the death penalty in cases involving seriously mentally ill citizens?